Biddle v. Bradshaw
United States District Court for the Western District of Arkansas, Hot Springs Division
June 17, 2019, Decided; June 17, 2019, Filed
Case No. 6:19-cv-6007

Reporter
2019 U.S. Dist. LEXIS 100994 *; 2019 WL 2503965
RICHARD BIDDLE and NORA BIDDLE, PLAINTIFFS v. JOSEPH ERNEST BRADSHAW, DEFENDANT

ORDER
Before the Court is Defendant Joseph Ernest Bradshaw’s Rule 12(b) Motion to Dismiss. (ECF No. 7). Plaintiffs Richard Biddle and Nora Biddle filed a response. (ECF No. 14). Defendant filed a reply. (ECF No. 15). Plaintiffs filed a sur-reply. (ECF No. 18). The Court finds the matter ripe for consideration.1

I. BACKGROUND
This case concerns an automobile collision. Plaintiffs are citizens of Arkansas who reside in Garland County. Defendant, a citizen and resident of Texas, is a self-employed tractor-trailer driver who, for the last eight years, has regularly transported wood chips for Ward Timber, a Texas-based customer. Defendant drives the wood chips fourteen miles from Jefferson, Texas to a mill in Ashdown, Arkansas. On March 11, 2018, Plaintiffs and Defendant, who were each driving their respective personal vehicles, were involved in a collision on Highway 59, in Marion County, Texas. Plaintiffs [*2] allege that Defendant negligently caused the collision, which resulted in personal injury and property damage.
On December 18, 2018, Plaintiffs filed suit in the Circuit Court of Garland County, Arkansas. On January 14, 2019, Defendant answered Plaintiff’s complaint and filed the instant motion to dismiss. On January 15, 2019, Defendant removed the case to this Court pursuant to 28 U.S.C. § 1441, asserting that the Court has original jurisdiction pursuant to 28 U.S.C. § 1332(a) because complete diversity exists between the parties and the amount in controversy exceeds $75,000.
On February 7, 2019, Defendant refiled the instant motion to dismiss with a new, introductory passage, noting that the motion had been filed and was pending in state court prior to removal.2 Defendant moves for dismissal based on lack of personal jurisdiction and improper venue.3 Plaintiffs oppose the motion.

II. DISCUSSION
Defendant moves for dismissal on two grounds: lack of personal jurisdiction and improper venue. The Court will first address Defendant’s venue argument and, if necessary, will then proceed to the personal jurisdiction argument.

A. Venue
Citing Arkansas state caselaw, Defendant argues that venue is improper because the Court lacks personal [*3] jurisdiction over him, and failure to satisfy the requirements for personal jurisdiction also amounts to failure to establish venue. Other than one paragraph in the instant motion, (ECF No. 7, p. 3), this venue argument is not discussed or even acknowledged in the parties’ subsequent briefing papers.4 Despite Defendant’s framing of his venue argument as being necessarily dependent on a personal jurisdiction determination, for the reasons discussed below, it is unnecessary for the Court to first make a finding on personal jurisdiction to resolve the venue issue.
Venue is “the place where the power to adjudicate is to be exercised, the place where the suit may be or should be heard.” Farmers Elevator Mut. Ins. Co. v. Carl J. Austad & Sons, Inc., 343 F.2d 7, 11 (8th Cir. 1965). “Venue requirements exist for the benefit of defendants.” Richards v. Aramark Servs., Inc., 108 F.3d 925, 928 (8th Cir. 1997). “One of the central purposes of statutory venue is to ensure that a defendant is not haled into a remote district, having no real relationship to the dispute.” Id. (internal quotation marks and citations omitted).
A party may move to dismiss an action that is not filed in the proper venue. Fed. R. Civ. P. 12(b)(3). When reviewing a motion under Rule 12(b)(3), the Court applies the same standard used for other motions to dismiss. Twin Lake Sales, LLC v. Hunter’s Specialties, Inc., 2005 U.S. Dist. LEXIS 13453, 2005 WL 1593361, at *1 (D. Minn. July 6, 2005). To that end, the Court must construe all facts in the [*4] light most favorable to the non-moving party and take as true all well-pled facts alleged in the complaint that are not controverted by the movant’s affidavits or evidence.5 Dobson Bros. Constr. Co. v. Arr-Maz Prods., L.P., No. 4:12-cv-3118, 2013 U.S. Dist. LEXIS 195052, 2013 WL 12141246, at *2 (D. Neb. May 7, 2013).
“Where no special venue statute is applicable, the general venue statute, 28 U.S.C. § 1391, applies.” Catholic Order of Foresters v. U.S. Bancorp Piper Jaffray, Inc., 337 F. Supp. 2d 1148, 1154 (N.D. Iowa 2004). However, the general venue statute does not apply to cases that have been removed from state to federal court. Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 665, 73 S. Ct. 900, 97 L. Ed. 1331 (1953). Venue of a removed case is governed solely by 28 U.S.C. § 1441(a), which provides that the proper venue of a removed case is “the district court of the United States for the district and division embracing the place where such action is pending.” Id. “[I]t is immaterial that the federal court to which the action is removed would not have been in a district of proper venue if the action had been brought there originally.”6 Schuler v. SunOpta Food Group LLC, No. CIV 3:07-CV-101, 2008 U.S. Dist. LEXIS 85485, 2008 WL 4416447, at *2 (D.N.D. Sept. 24, 2008) (citing Charles Alan Wright et al., Federal Practice and Procedure § 3726, at 119-20 (3d ed. 1998)).
It is undisputed that this case was initially brought in the Garland County Circuit Court. The Western District of Arkansas, Hot Springs Division, is the federal judicial district and division embracing [*5] Garland County, Arkansas. 28 U.S.C. § 83(b)(6). Thus, even assuming arguendo that pre-removal venue was improper in the Garland County Circuit Court as Defendant contended, venue is now proper in this Court pursuant to section 1441(a) because Defendant removed the case to the federal judicial district and division embracing the place where the case was previously pending. Shaffer v. Rees Masilionis Turley Architecture, LLC, No. 4:14-cv-965 CEJ, 2014 U.S. Dist. LEXIS 147878, 2014 WL 5320266, at *1 (E.D. Mo. Oct. 17, 2014) (“The fact that venue may have been improper in the state court prior to removal is of no import.”); see also 28 U.S.C § 1441(f) (abrogating the theory of derivative jurisdiction and stating, “[t]he court to which a civil action is removed . . . is not precluded from hearing and determining any claim . . . because the State court from which such civil action is removed did not have jurisdiction over that claim”); Hollis v. Fla. State Univ., 259 F.3d 1295, 1300 (11th Cir. 2001) (stating that, “as a matter of law, § 1441(a) establishes federal venue in the district where the state action was pending, and it is immaterial that venue was improper under state law when the action was originally filed”).
Accordingly, the Court finds that venue is proper in the Western District of Arkansas, Hot Springs Division, and that dismissal [*6] is not warranted on venue grounds. With the issue of venue now resolved, the Court will take up Defendant’s personal jurisdiction argument.

B. Personal Jurisdiction
Defendant also argues that this case should be dismissed for lack of personal jurisdiction because he is a Texas resident, the automobile collision at issue occurred in Texas, and he does not have sufficient contacts with Arkansas for the Court to exercise personal jurisdiction over him.
A party may move to dismiss for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). To defeat a Rule 12(b)(2) motion, a plaintiff must make a prima facie showing of jurisdiction. Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 818 (8th Cir. 1994). This prima facie showing must be tested, not by the complaint alone, but “by the affidavits and exhibits presented with the [motion to dismiss] and in opposition thereto.” Block Indus. v. DHJ Indus., Inc., 495 F.2d 256, 260 (8th Cir. 1974). If a court does not hold a hearing on personal jurisdiction and instead bases its determination on the parties’ written submissions, the court must view the facts in the light most favorable to the nonmoving party. Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir. 1991). Although Plaintiffs ultimately bear the burden of proof on the issue, personal jurisdiction does not have to be proven by a preponderance of the evidence until trial or an evidentiary hearing. Id.
A federal court [*7] sitting in diversity may assume jurisdiction over a nonresident defendant to the extent permitted by the forum state’s long-arm statute. Arkansas’s long-arm statute provides that: “[t]he courts of this state shall have personal jurisdiction of all persons, and all causes of action or claims for relief, to the maximum extent permitted by the due process of law clause of the Fourteenth Amendment of the United States Constitution.” Ark. Code Ann. § 16-4-101(B).
Accordingly, the question before the Court is whether exercising personal jurisdiction over Defendant is consistent with the due process clause of the Fourteenth Amendment. The Fourteenth Amendment permits the exercise of personal jurisdiction over a nonresident defendant who has “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 85 L. Ed. 278 (1940)). The defendant’s conduct and connection with the state must be such that the defendant should “reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980). Personal jurisdiction requires some act by which Defendant purposely availed himself of the privilege of conducting activities within Arkansas, thus invoking the benefits and protections of its laws. Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1073 (8th Cir. 2004) (citing Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958)). If the Court determines that Defendant has minimum contacts with Arkansas, [*8] it then may consider “whether the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.'” See id. (quoting Burger King Corp., 471 U.S. at 476).
Courts consider the following factors when resolving a personal jurisdiction inquiry, with significant weight given to the first three factors: (1) the nature and quality of a defendant’s contacts with the forum state; (2) the quantity of such contacts; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) the convenience of the parties. Id. at 1073-74. However, the third factor is considered only in a specific-jurisdiction analysis. See Miller v. Nippon Carbon Co., Ltd., 528 F.3d 1087, 1091 (8th Cir. 2008). Moreover, the fourth and fifth factors relate to the Court’s consideration of “traditional notions of fair play and substantial justice” in the due process analysis. See Lakin v. Prudential Servs., Inc., 348 F.3d 704, 712 (8th Cir. 2003).
There are two theories for evaluating minimum contacts: general jurisdiction and specific jurisdiction. Id. The Court will separately address each.

1. Specific Jurisdiction
The parties appear to agree that specific jurisdiction does not exist in this case, and for good reason, as specific jurisdiction is only viable when litigation results from alleged injuries that [*9] arise out of or relate to activities that a defendant purposely directed at residents of the forum state. Wessels, Arnold & Henderson v. Nat’l Med. Waste, Inc., 65 F.3d 1427, 1432 (8th Cir. 1995). It is undisputed that Defendant’s contacts with the State of Arkansas have nothing to do with the automobile collision that occurred in Texas, where Defendant was driving his personal vehicle and not working in his capacity as a tractor-trailer driver. Thus, Plaintiffs’ alleged injuries do not arise out of or relate to activities that Defendant purposely directed at residents of Arkansas. Id. Accordingly, specific jurisdiction cannot be found here. The only remaining question before the Court is whether general jurisdiction exists to warrant a finding of personal jurisdiction over Defendant.

2. General Jurisdiction
Under the theory of general jurisdiction, the Court may hear this case if Defendant has “continuous and systematic” contacts with Arkansas as to render him “essentially at home” in Arkansas, even if the injuries at issue in this lawsuit did not arise out of Defendant’s activities directed at Arkansas. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011). The standard for general jurisdiction is demanding, as “only a limited set of affiliations with a forum will render a defendant amenable to all-purpose jurisdiction there.” [*10] Daimler AG v. Bauman, 571 U.S. 117, 137, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014). “For an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s domicile; for a corporation, it is . . . the place of incorporation and principal place of business.” Id. In other words, “[t]o exercise general jurisdiction over a corporation or individual, generally the party in question must be a citizen of the subject jurisdiction.” Henry Law Firm v. Cuker Interactive, LLC, No. 5:18-cv-5066-TLB, 2018 U.S. Dist. LEXIS 103850, 2018 WL 3025959, at *4 (W.D. Ark. June 18, 2018), appeal dismissed, No. 19-1254 (8th Cir. Feb. 19, 2019). However, this does not “foreclose the possibility that in an exceptional case, a corporation’s operations in a forum other than its [paradigm forum] may be so substantial and of such a nature as to render the corporation at home in that State.” Daimler, 571 U.S. at 139 n.19 (internal citation omitted).
Defendant takes the position that his contacts with Arkansas—daily fourteen-mile trips from Jefferson, Texas to Ashdown, Arkansas to deliver wood chips—are insufficient to establish general jurisdiction. To this end, he argues that he is a citizen and resident of Texas, which as his domicile is the paradigm forum for the exercise of general jurisdiction over him.7 Although he does not explicitly state as much, Defendant seems to imply [*11] that, as an individual, general jurisdiction can only be exercised over him in Texas.8 Defendant also argues that he has not entered into any business contract in Arkansas but, rather, his daily trips are on behalf of Ward Timber, which has itself entered into contracts and obligations with various Arkansas entities. Defendant states further that he is paid by Ward Timber for his trips. Defendant also contends that if he is found to have minimum contacts with Arkansas, exercising personal jurisdiction over him would offend traditional notions of fair play and substantial justice because no reasonable person in his position would foresee being haled into an Arkansas court for a collision that occurred in Texas and outside his professional capacity.
Plaintiffs argue that Defendant’s contacts with Arkansas are systematic and continuous enough to support general jurisdiction because, for eight years, he has been a self-employed driver, transporting wood chips into Arkansas for Ward Timber, at least once a day, five days a week, for an estimated total of between two and six thousand trips. (ECF No. 14-1, p. 2). Plaintiffs also point the Court to Defendant’s deposition [*12] testimony, in which he indicated that his entire driving-based income is derived from these trips and that he pays ad valorem taxes in Arkansas, assessed on his vehicle operations in the state. (ECF Nos. 14-1, p. 3; 14-2). Plaintiffs conclude that Defendant, for his own commercial gain, availed himself of the benefits and protections of Arkansas by traveling here on thousands of business trips and, thus, due process would not be offended if the Court exercises personal jurisdiction over him.
Plaintiffs’ recitation of the law governing general jurisdiction comports with the traditional approach, in which a “general-jurisdiction analysis . . . focused simply on whether a defendant had contact ‘of a continuous and systematic nature’ with the forum state.” Merryman v. JP Morgan Chase Bank, N.A., No. 5:15-CV-5100-PKH, 2015 U.S. Dist. LEXIS 156691, 2015 WL 7308666, at *2 (W.D. Ark. Nov. 19, 2015) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984)). However, Plaintiffs fail to recognize that, in Goodyear and Daimler, the Supreme Court “clarified and, it is fair to say, raised the bar for [general] jurisdiction,” resulting in a “dramatic” and “significant narrowing of general jurisdiction’s scope.”9 2015 U.S. Dist. LEXIS 156691, [WL] at *3. As the Supreme Court stated in Daimler, the inquiry is no longer whether a foreign defendant’s in-forum contacts are [*13] in some sense “continuous and systematic,” but rather whether the defendant’s in-forum contacts are so “continuous and systematic as to render [it] essentially at home in the forum state.” Daimler, 571 U.S. at 138-39 (alteration in original). Daimler rejected the argument that general jurisdiction can be found in every state in which a corporate defendant engages in a substantial, continuous, and systematic course of business, finding that proposition “unacceptably grasping.” Id. at 138. In so doing, Daimler cautioned that in all but the “exceptional case,” a defendant will likely only be at home, and therefore only subject to general jurisdiction, in its paradigm forum.10 Id. at 139, n.19.
Plaintiffs present no evidence that Defendant is domiciled in Arkansas. Moreover, to the extent that Defendant may be viewed as a corporation, Plaintiffs present no evidence that his business is incorporated in or has a principal place of business in Arkansas. The facts, viewed in the light most favorable to Plaintiffs, instead establish that Defendant lives in Texas, that his Texas-based unincorporated trucking business services a single Texas-based customer, and that he is paid for performing near-daily [*14] fourteen-mile hauling trips from Jefferson, Texas to Ashdown, Arkansas. The evidence also establishes that Defendant pays a small amount of annual ad valorem taxes in Arkansas for his vehicle operations in the state.11
Prior to Goodyear and Daimler, these facts would have likely presented a close call as to whether general personal jurisdiction could be exercised over Defendant. Indeed, prior to Goodyear and Daimler, various courts deciding Rule 12(b)(2) motions in factually similar cases reached vastly different outcomes. Compare Obermeyer v. Gilliland, 873 F. Supp. 153, 158 (C.D. Ill. 1995) (granting Rule 12(b)(2) motion and finding no general jurisdiction over a foreign truck driver who frequently drove into the forum state for business purposes because, regardless of whether the driver possessed minimum contacts with the forum state, exercising personal jurisdiction over him would not comport with traditional notions of fair play and substantial justice); Amos by Amos v. Pendry, 810 F. Supp. 146, 147 (M.D. Penn. 1992) (granting Rule 12(b)(2) motion, in part, after finding no general jurisdiction over a foreign truck driver who frequently drove into the forum state for business purposes), and Simpson v. Quality Oil Co., 723 F. Supp. 382, 390 (S.D. Ind. 1989) (same), with Carter v. Massey, 436 F. Supp. 29, 34 (D. Md. 1977) (denying Rule 12(b)(2) motion and finding general jurisdiction over a foreign truck driver who frequently traveled through the forum state for business [*15] purposes).
However, following Goodyear and Daimler’s dramatic departure from the body of developed caselaw on general jurisdiction, courts have declined to “exercise general jurisdiction in every State in which a [defendant] engages in a substantial, continuous, and systematic course of business.” See, e.g., Merryman, 2015 U.S. Dist. LEXIS 156691, 2015 WL 7308666, at *3. Plaintiffs fail to cite to a single post-Daimler case in which a court exercises general jurisdiction over a foreign individual who takes regular business trips into the forum state. Defendant’s repeated hauling trips into Arkansas are certainly of a significant number, but even so, “a consistent course of dealings with . . . the forum, over a long period of time . . . do[es] not constitute the sort of contacts” necessary to render him essentially at home in Arkansas. See Jacobs Trading, LLC v. Am. Eagle Trading Grp., LLC, No. 16CV00406SRNKMM, 2016 U.S. Dist. LEXIS 133823, 2016 WL 5508805, at *4 (D. Minn. Sept. 28, 2016). Defendant’s trips fare no better even when considered in conjunction with his payment of ad valorem taxes in Arkansas for his vehicle usage. See Holman v. AMU Trans, LLC, No. 14 C 04407, 2015 U.S. Dist. LEXIS 82799, 2015 WL 3918488, at *2 (N.D. Ill. June 25, 2015) (finding that a foreign trucking defendant’s usage of a state’s highways and payment of a motor vehicle use tax in that state falls short of the Goodyear/Daimler general jurisdiction standard). [*16] There is no evidence that Defendant is registered to do business in Arkansas; that he advertises in Arkansas; that he maintains offices, employees, or bank accounts in Arkansas; or that he sells or manufactures goods in Arkansas. See Goodyear, 564 U.S. at 921. Defendant’s only contacts with Arkansas are that he frequently drives a short distance into the state while providing a service to a Texas customer and that he pays a small, attendant tax for doing so. Defendant’s continuous course of business in Arkansas falls short of the demanding Goodyear/Daimler standard. Holman, 2015 U.S. Dist. LEXIS 82799, 2015 WL 3918488, at *3. Thus, the Court finds that Defendant’s contacts are insufficient to find him essentially at home in Arkansas.
Even assuming arguendo that Defendant’s contacts are enough to find him essentially at home in Arkansas, the Court finds that the notions of fair play and substantial justice would be offended by exercising general jurisdiction over him. “The mere fact [that Defendant], as part of his job, frequently drives into [Arkansas] is not sufficient to justify subjugating him to the power of [Arkansas] Courts for suits not arising from his work in [Arkansas]. Hauling him into court in [Arkansas] for his involvement in a [Texas] accident would not [*17] be foreseeable, fair, or reasonable.” Obermeyer, 873 F. Supp. at 158.
In sum, Plaintiffs do not argue that Defendant is—either individually or professionally—domiciled in Arkansas. Nor can they, as the evidence before the Court indicates that Defendant lives in Texas and that his business is based in Texas. Plaintiffs’ offered facts do not present the “exceptional case” contemplated by Daimler and, absent a “paradigmatic” contact with Arkansas, Plaintiffs’ argument extends no further than the “substantial, continuous, and systematic course of business” line of reasoning that was expressly rejected by the Supreme Court in Daimler. See Daimler, 571 U.S. at 138. Without more, general jurisdiction is not appropriate over Defendant. Accordingly, the Court finds that it lacks personal jurisdiction over Defendant and that this case must be dismissed.

III. CONCLUSION
For the above-stated reasons, the Court finds that Defendant’s motion to dismiss (ECF No. 7) should be and hereby is GRANTED. The Court lacks personal jurisdiction over Defendant. This case is hereby DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED, this 17th day of June, 2019.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge

2019 WL 2549231

United States District Court, W.D. Texas, San Antonio Division.
JOSHUA NEDDO, GERALDINE NEDDO, INDIVIDUALLY AND AS NEXT FRIEND OF KAILEYAH NEDDO, A MINOR, Plaintiffs,
v.
NEW PRIME, INC. AND BENJAMIN JAMES DOUGHERTY, Defendants.
Civil Action No. 5:18-CV-00139-XR
|
Filed 06/20/2019

ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT
XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE
*1 On this date, the Court considered Defendants’ Motion for Partial Summary Judgment (docket no. 86), Plaintiffs’ response (docket no. 92), and Defendants’ reply (docket no. 93). After careful consideration, the Court GRANTS Defendants’ Motion.

BACKGROUND
This case stems from an automobile collision between Plaintiffs and Defendant Benjamin James Dougherty on May 12, 2017. Plaintiffs are Geraldine Neddo (the driver at the time of the collision), Joshua Neddo (Geraldine’s husband, who was in the passenger seat at the time of the collision), and Geraldine Neddo as next friend of Kaileyah Neddo (a minor who was in the back seat of the vehicle at the time of the collision).

At the time of the accident, Dougherty drove a tractor-trailer for his employer, Defendant New Prime, Inc. Dougherty was allegedly acting within the course and scope of his employment with New Prime at the time of the accident. Docket no. 11 at ¶10. Plaintiffs allege that the collision occurred when Dougherty, who was driving the tractor-trailer, turned right onto Broadway Street from the left lane of Gulfmart Street. Id. Plaintiffs allege that they were in the right lane on Gulfmart Street and that Dougherty crashed into their vehicle while making his turn. Id. Pictures of the accident show that the trailer portion of Dougherty’s tractor-trailer hit Plaintiffs’ vehicle while Dougherty was in the process of making a right hand turn onto Broadway Street. Docket no. 92-19. Plaintiffs seek damages upward of one million dollars and claim to have suffered permanent injuries. Docket no. 11 at ¶9.

On October 2, 2017, Plaintiffs filed their Original Petition in the 166th Judicial District Court of Bexar County, Texas. Docket no. 1-4. On February 12, 2018, Defendants filed their Notice of Removal to this Court. Docket no. 1. Plaintiffs bring negligence and gross negligence claims against New Prime for entrusting Dougherty with the vehicle; providing him unsafe equipment and negligently maintaining it; and negligently hiring, training, supervising, retaining, and contracting Dougherty. Docket no. 11 at ¶17-23. Plaintiffs also bring a cause of action against New Prime under respondeat superior, seeking to hold New Prime liable for Dougherty’s underlying negligence. Id. at ¶12-15. In their response to the Motion for Summary Judgment, Plaintiffs have requested leave to amend their First Amended Original Complaint to withdraw the negligence and gross negligence causes of action regarding hiring, entrustment, retention, contracting, and maintenance. Docket no. 92 at 1. This request is granted, these claims are withdrawn, and Defendants’ Motion for Partial Summary Judgement is moot as to the withdrawn claims.

Plaintiffs maintain that New Prime was negligent and grossly negligent in the training and supervision of and providing unsafe equipment to Dougherty. Id. at 2. As to the respondeat superior claim, Plaintiffs allege that New Prime is liable because Dougherty was operating the vehicle in the course of his employment with New Prime at the time of the accident. Docket no 11 at ¶12-15. As to the remaining negligence and gross negligence claims against New Prime, Plaintiffs allege that New Prime was negligent or grossly negligent in the manner in which Dougherty was trained and supervised prior to the collision at issue. Id. at ¶17-23. Plaintiffs also allege that New Prime acted negligently or grossly negligently by providing unsafe equipment to Dougherty which proximately caused Plaintiffs’ injuries.

*2 Plaintiffs maintain that Dougherty was negligent, negligent per se, and grossly negligent. As to the claims against Dougherty, Plaintiffs allege that Dougherty was negligent because he failed to exercise ordinary care in the operation of his motor vehicle, that Dougherty was negligent per se because he violated numerous provisions of the Texas Transportation Code, and that Dougherty was grossly negligent because he had actual, subjective awareness of the risk involved but nevertheless, proceeded in conscious indifference to the rights, safety, or welfare of Plaintiffs. Docket no. 11 at ¶24-32.

Defendants filed the Motion for Partial Summary Judgment now before the Court on May 6, 2019. Docket no. 86. Defendants seek summary judgment on the direct and gross negligence claims against New Prime and the gross negligence claim against Dougherty.

DISCUSSION

A. Standard of Review
The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(A). To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the non-moving party’s claim or defense, or, if the crucial issue is one for which the non-moving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the non-movant’s claim or defense. Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986). Once the movant carries its initial burden, the burden shifts to the non-movant to show that summary judgment is inappropriate. Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc. 831 F.2d 77, 79 (5th Cir. 1987).

For a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the non-movant, or, in other words, that the evidence favoring the non-movant is insufficient to enable a reasonable jury to return a verdict for the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.4 (1986). In making this determination, the court should review all the evidence in the record, giving credence to the evidence favoring the non-movant as well as the “evidence supporting the moving party that is contradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000). The Court “may not make credibility determination or weigh the evidence” in ruling on a motion for summary judgment, and must review all facts in the light most favorable to the non-moving party. Id. at 150; First Colony Life Ins. Co. v. Sanford, 555 F.3d 177, 180 (5th Cir. 2009).

B. Application

1. Plaintiffs’ Negligent Training and Supervision Claims Against New Prime Fail.
Plaintiffs claim that New Prime was negligent in training and supervising Dougherty. Docket no. 92 at ¶19. New Prime argues that these claims fail because the summary judgment evidence shows that Dougherty was a competent driver with a valid and current commercial driver’s license, and that nothing in Dougherty’s record gave New Prime a reason not to hire and keep Dougherty as an employee. Docket no. 86 at ¶4.7. New Prime also argues that the evidence shows that it was not negligent in supervising Dougherty because New Prime properly trained and supervised Dougherty under the requirements of the Federal Motor Carrier Safety Regulations for commercial drivers. Id. at ¶4.6-4.11.

*3 Under Texas law, negligent training and supervision claims are based on an employer’s direct negligence rather than on vicarious liability. Phillips v. Super Servs. Holdings, LLC, 189 F.Supp. 3d 640, 648 (S.D. Tex. 2016) (citing Guidry v. Nat’l Freight, Inc., 944 S.W.2d 807, 810 (Tex. App.—Austin 1997, no writ). Like all simple negligence claims, the elements are duty, breach, and damages proximately caused by the breach. Id. A plaintiff can recover for “negligent […] supervision in cases where the employer’s direct negligence in hiring or retaining an incompetent employee whom the employer knows, or by the exercise of reasonable care should have known, was incompetent or unfit, thereby creating an unreasonable risk of harm to others.” Garcia v. Hospice of El Paso, 2003 WL 21961177 at *5 (W.D. Tex. 2003) (citing Wise v. Complete Staffing Services, Inc., 56 S.W.3d 900, 902 (Tex. App.—Texarkana 2001, no pet.)). “Texas has long recognized an employer’s duty to make inquiry into the competence and qualifications of those considered for employment, and an employer may be guilty for negligently hiring an incompetent employee and thus be held liable for damages.” McDorman ex rel. Connelly v. Texas-Cola Leasing Co. LP, LLP, 288 F. Supp. 2d 796, 803 (N.D. Tex. 2003) (citing Arrington v. Fields, 578 S.W.2d 173, 179 (Tex. Civ. App.—Tyler 1979, writ ref’d n.r.e.).

“In light of these principles, and in order to promote safety and prevent motor vehicle accidents, a motor carrier has a duty to take steps to prevent injury to the driving public by determining whether an applicant to drive one of its trucks is competent and qualified.” Phillips, 189 F. Supp. 3d at 648 (citing Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex. App.—Fort Worth 2002, no pet.).

Here, the summary judgment evidence reveals the following about Dougherty and New Prime’s training and supervision:
• Dougherty entered New Prime’s driver training program to learn how to become a commercial driver, where he received training through computer simulation, classroom instruction, and hands-on training with a truck and trailer. Dougherty Depo. at 27:19-22.
• Dougherty completed at least 30,000 miles of hands-on driving training as part of New Prime’s training program. Id. at 42:15-25.
• Dougherty was taught how to make right-hand turns from an intersection onto one way streets, two-lane roads, and four-lane roads during his training with New Prime. Id. at 46:23 – 47:1-8.
• Dougherty received his commercial driver’s license from the state of Missouri after receiving his initial training and learning how to drive through New Prime’s driver training program. Id. at 39:23 – 40:1, 40:5-11.
• Prior to the accident, New Prime reviewed Dougherty’s driving record which revealed only one past accident—a fender-bender with no injuries that had occurred over ten years prior. Dougherty had not been in a driving accident or received a speeding or moving violation in the ten years leading up to the accident. Id. at 132:22-134:11.
• Dougherty met with a representative of the New Prime safety department and completed an additional safety course after his accident. Id. at 71:16-22.

On this record, no reasonable fact finder could find that New Prime breached its duty to take steps to protect the public by failing to determine whether its drivers are competent or qualified or that New Prime’s training or supervision practices proximately caused Plaintiffs’ injuries. There is no triable fact issue as to Plaintiffs’ negligent training or supervision claims. Because New Prime has met its summary judgment burden by pointing out that insufficient evidence supports key elements of these claims, the burden shifts to Plaintiffs to show summary judgment is inappropriate.

Plaintiffs’ evidence is insufficient to show that summary judgment is inappropriate because it does not show that there is a genuine dispute as to any material fact. First, Plaintiffs assert that New Prime never gave Dougherty a copy of the Texas Commercial Motor Vehicle Driver Handbook and that Dougherty was never taught these rules. Docket no. 92 at ¶19. Plaintiffs also assert that Dougherty’s immediate supervisor, Joseph Walcher, was not trained in New Prime’s vehicle collision warning system or driver safety procedures. Id. at ¶20-21. However, even viewed in the light most favorable to Plaintiffs, these facts are insufficient to show negligence on behalf of New Prime. New Prime’s training program is extensive and Dougherty received his commercial driver’s license from the state of Missouri. Dougherty Depo. at 39:23 – 40:1, 40:5-11. Thus, New Prime did not breach the duty it owed to the public or to Plaintiffs because no reasonable jury could find that New Prime failed to exercise reasonable care in training and supervising Dougherty.

*4 Nor can Plaintiffs show that there is a genuine dispute as to whether New Prime proximately caused Plaintiffs’ injuries. Proximate cause requires foreseeability and cause-in-fact. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). Plaintiffs assert that such an accident was foreseeable because New Prime did not properly train or supervise its drivers, but presents no evidence that New Prime failed to train or supervise its drivers. Because Plaintiffs have not presented any evidence that creates a factual dispute as to whether New Prime properly trained and supervised Dougherty, there is no dispute as to whether an accident was foreseeable due to lack of proper training or supervision. Nor is there any genuine dispute as to whether New Prime’s hiring or supervision of Dougherty was cause-in-fact of Plaintiffs’ injuries. Plaintiffs assert that had Dougherty been properly trained, this collision would not have occurred, but provides no evidence for this statement.

Plaintiffs have not shown that there is a factual dispute as to New Prime’s negligence in either training or supervising Dougherty. As such, a reasonable factfinder could not find that New Prime negligently trained or supervised Dougherty. Summary judgment on these claims is granted.

2. Plaintiffs’ Claim Against New Prime for Negligently Providing Unsafe Equipment Fails.
Plaintiffs allege that New Prime was negligent in providing unsafe equipment to Dougherty by failing to equip Dougherty’s vehicle with working industry standard systems. Docket no. 92 at ¶27-28. Like their negligent training and supervision claims, Plaintiffs’ claim that New Prime was negligent in providing unsafe equipment requires Plaintiffs to show that New Prime was directly negligent—that is, separate from any alleged negligence of Dougherty that contributed to the accident. Like all simple negligence claims, the elements are duty, breach, and damages proximately caused by the breach. Phillips, 189 F.Supp. 3d at 648.

Here, there is no genuine dispute of fact regarding the tractor-trailer provided by New Prime. Under an ordinary negligence action, New Prime is required to exercise reasonable care under the circumstances, and only by presenting evidence of New Prime’s breach of this reasonable care can Plaintiffs satisfy this key element of negligence. Plaintiffs have not provided evidence which raises a triable fact dispute regarding New Prime’s breach. Plaintiffs have simply stated that the truck Dougherty was driving was not equipped with the Eaton Vorad Collision Warning System and that the Lane Departure Warning System did not provide a warning to Dougherty. Docket no. 92 at ¶27-28. This does not create a genuine factual dispute regarding breach because there is no evidence that these systems are required to exercise reasonable care, nor that reasonable care is not exercised if these systems are absent.

Neither is there a genuine dispute of fact regarding proximate cause. Proximate cause requires foreseeability and cause-in-fact. Travis, 830 S.W.2d at 98. Here, considering the evidence in the light most favorable to the non-moving party, Plaintiffs have asserted only that New Prime did not equip its trucks with a specific warning system as evidence of the foreseeability of this accident. Docket no. 92 at ¶27. This fact does not create a dispute as to the foreseeability of the accident because the absence of the Eaton Vorad Collision Warning System does not, in itself, create a factual dispute as to whether an automobile accident was foreseeable.

Plaintiffs have also failed to provide sufficient evidence that the absence of the warning system was the cause-in-fact of the accident. Dougherty testified that the new company he works for, P&S Transportation, does not have such a warning system on their trucks, and New Prime’s Director of Safety, Steven Field, testified that these systems had issues with accuracy when tested. Dougherty Depo. at 38:11-19; Fields Depo. at 28:13-24. Despite Plaintiffs assertion that this system’s absence was the cause of the accident, no reasonable factfinder could find that that the cause-in-fact of the accident was the absence of the Eaton Vorad Collision Warning System.

*5 Additionally, Plaintiffs attribute the accident to the lack of warning from the truck’s lane departure system. Docket no. 92 at ¶28. However, the evidence shows that the lane departure warning system only operates at speeds above 37 miles per hour. Docket no. 92-3 at 91. Additionally, the system is not responsible for making the driver alert or for alerting the driver if his trailer was out of alignment, as long as the tractor maintains the lane. Docket no. 10 at 12. Although Plaintiffs claim that the lane departure system was supposed to warn Dougherty of lane departures, the evidence directly contradicts this claim. As such, Plaintiffs have not provided evidence that the lack of warning from the lane departure system led the accident to be foreseeable or that it was a cause-in-fact of the accident. Because the evidence shows that the lane departure system was not supposed to provide a warning in the circumstances in which the collision occurred, no reasonable factfinder could find that the lack of warning contributed to the collision. There is no genuine dispute as to any material fact regarding Plaintiffs’ allegation of New Prime’s negligence in providing unsafe equipment. Summary judgment on this claim is granted.

3. Plaintiffs’ Gross Negligence Claims Fail.
Plaintiffs bring gross negligence claims against both New Prime and Dougherty. New Prime and Dougherty both argue that summary judgment is warranted because Plaintiffs cannot provide any evidence of the requisite intent for gross negligence. Docket no. 86 at ¶4.17-4.18.

To recover exemplary damages under Texas law, a plaintiff must “prove[ ] by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from: (1) fraud; (2) malice; or (3) gross negligence” Tex. Civ. Prac. & Rem. Code § 41.003(a). “Clear and convincing” evidence requires “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Id. § 41.002(2). In this context, “gross negligence” means an act or omission:
(A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
(B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.
Id. § 41.001(11)

To meet the objective element, plaintiffs must show that the defendant’s act or omission involved “an extreme degree of risk,” which means “not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff.” Dillard Dep’t Stores, Inc. v. Silva, 148 S.W.3d 370, 374 (Tex. 2004) (internal quotation omitted). To meet the subjective element, plaintiffs must show that the “defendant knew about the peril, but his acts or omissions demonstrate that he did not care.” Diamond Shamrock Ref. Co., L.P. v. Hall, 168 S.W.3d 164, 171-72 (Tex. 2005). (internal quotation and footnote omitted). “Evidence of simple negligence does not meet either the subjective or objective elements.” Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). “[F]ailure to pursue the safest course available or provide the best warnings imaginable does not necessarily equate to a want of caring[,]” nor “does the violation of a law or regulation inescapably evince conscious indifference.” Agrium U.S., Inc. v. Clark, 179 S.W.3d 765, 767 (Tex. App.—Amarillo 2005, no pet.).

Here, Plaintiffs do not provide evidence that shows summary judgment is inappropriate as to the gross negligence claims. As to New Prime, Plaintiffs only state that New Prime did not provide a Texas Commercial Motor Vehicle Driver Handbook to Dougherty, explain all additional safety features to Dougherty, or install additional safety features on Dougherty’s truck. Docket no. 92 at ¶19, 27. As to Dougherty, Plaintiffs only state that Dougherty made his right turn from the wrong lane without adequately checking for traffic. Id. at ¶34. No reasonable factfinder could find that these acts and omissions involve an extreme degree of risk. Nor could a reasonable factfinder find that New Prime or Dougherty knew of an extreme risk and proceeded anyway with conscious indifference as to Plaintiffs’ safety. This conduct may give rise to a negligence claim against Dougherty, but unquestionably does not rise to the level of gross negligence, and Plaintiffs produce no evidence that indicates otherwise. Defendants’ Motion for summary judgment for all claims of gross negligence is granted.

CONCLUSION
*6 Defendants’ Motion for Partial Summary Judgment (docket no. 86) is GRANTED. Accordingly, only Plaintiffs’ claims for negligence and negligence per se remain against Dougherty, and only Plaintiffs’ claim under respondeat superior remains against New Prime.

Plaintiffs’ request for leave to file their Second Amended Complaint, attached as Exhibit A to docket no. 92, is GRANTED. The Clerk is directed to file Plaintiffs’ Second Amended Complaint.

It is so ORDERED.

SIGNED this 20th day of June, 2019.

All Citations
Slip Copy, 2019 WL 2549231